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Right to work checks: Extended criminal liabilities for employers

Background
All employers in the UK have a duty to prevent illegal working by carrying out certain checks – known as ‘Right to work checks’ – on all employees before they commence employment.
Failure to carry out these checks, and to properly retain copies of right to work documents, can result in civil and criminal liabilities for employers.
A civil penalty of up to GBP 20,000 per illegal worker may be imposed if an employer employs someone without the right to undertake the work for which they are employed.
A criminal offence will be committed if an employer knowingly employs an individual who does not have the right to undertake the work for which they are employed.

The Immigration Act 2016
With effect from 12 July 2016, the current criminal liabilities will be amended by the Immigration Act 2016 to extend the offence of “knowingly” employing such persons to include employers who have “reasonable cause to believe” that an employee is disqualified from employment by reason of their immigration status.
In addition, the maximum term of imprisonment on indictment for a criminal immigration offence will increase from 2 to 5 years (although the potential for an unlimited fine in addition to such imprisonment remains).
A new criminal offence of illegal working, where an individual works in the UK with the knowledge or reasonable cause to believe that they are doing so illegally, is also being introduced with effect from 12 July 2016. This carries a maximum term of imprisonment of 6 months and allows for the individual’s earnings to be seized under the Proceeds of Crime Act 2002.
Also coming into force on 12 July 2016 is the creation of a new Director of Labour Market Enforcement. There will also be additional powers for immigration officers to search and seize documents in connection with the imposition of a civil penalty where they have reasonable grounds for believing the employer is in breach of their duties to prevent illegal working. There will also be extended powers to impose compliance sanctions and to close businesses which continue to employ illegal worker.

Comment
The changes reflect the government’s continued efforts to create a “hostile environment” for persons who are in the UK illegally, and to clamp down on employers who turn a blind eye to illegal working.
The changes will be of particular concern to employers, as they both lower the threshold for criminal culpability from “knowingly” employing an illegal immigrant to having “reasonable cause to believe” that illegal working or employment of an illegal worker is taking place, whilst simultaneously increasing the maximum penalties.
This means that employers will no longer be protected from prosecution on the basis that they did not explicitly know that an individual did not have the correct immigration permission for the work in question. However, it remains to be seen how the new wider culpability for a “reasonable cause to believe” will be interpreted.
It is therefore important to ensure that right to work checks are properly conducted before an individual begins their employment. If the checks are properly done, this will provide employers with a “statutory excuse” which protects them from civil or criminal liabilities.

Right to work checks
The 3-step checks that employers must undertake to comply with the law and secure the statutory excuse can be summarised as follows:
Obtain the employee’s original documents as prescribed in the Home Office guidance.
Check in the presence of the employee that the documents are original and valid.
Copy and keep the documents securely and record the date of the check and date for follow-up checks.
It should be noted that all of the above steps must be conducted, as partial compliance with the above is not considered to be mitigating circumstances for the purposes of civil or criminal liability.

Top tips for compliance
Ensure that right to work checks are conducted in full before employees start work and thatoriginal documents are obtained, checked and copied in accordance with the Home Office Guidance.

Carry out right to work checks on all new employees to avoid discrimination claims.
Make the satisfactory completion of right to work checks a condition of any offers of employment.

Ensure that employment contracts place an obligation on employees to report any change to their immigration status and also provide for an express right to terminate the employment where the employee is not entitled to work in the UK. Employers may still need to follow a fair process to avoid claims for unfair dismissal but provisions such as these will provide a contractual basis for enforcing the employer’s stance on an individual’s right to work in the UK.

Ensure that all documents checked comply with the Home Office’s list of acceptable documents (note that this changes periodically) and that any photocopies of documents are complete and clear.

Always record the date on which each check was carried out and keep a record of when any follow-up checks must be made.

Be aware of the additional checks required if the employee is a student with work restrictions.

Be mindful that some immigration permissions only relate to specified roles, therefore there may be implications if an employee’s role changes.

Ensure that records of checks are easily accessible so they can be provided quickly if requested.

Be aware that there is a requirement to conduct right to work checks on all employees within 60 days following a TUPE transfer.

Note that if the UK leaves the EU the present rights of free movement enjoyed by EEA and Switzerland nationals to come to live and work in the UK may cease, meaning that right to work checks could become more extensive in the future.

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